Custody

Legislation should require the court to give priority to the best interests of the child and the safety of the parent who is the victim of domestic violence.
Legislation should require the court to consider the perpetrator’s history of causing physical or psychological harm or causing the reasonable fear of physical or psychological harm to family members.
Legislation should mandate that the absence of a parent from a court proceeding because of domestic violence, or the relocation of a parent due to domestic violence, should not weigh against the absent parent in determining custody or visitation.

(See Family Violence: A Model State Code (1994), USA, Sec. 401 and 402.)

For example, the New Zealand Guardianship Amendment Act (1995) of includes a presumption against giving custody or unsupervised access to a party who has used violence against a child or the other party to the proceedings unless the court was sure that the child would be safe from violence. A protective order under the Domestic Violence Act (1995) of New Zealand would trigger this presumption. (See Deserving of Further Attention: A Case Streaming Approach to Child Custody and Access in the Context of Spousal Violence (2005).

Case Study: Battered Mothers’ Testimony Project: A Human Rights Approach to Child Custody and Domestic Violence

In a 2003 study, the Arizona Coalition Against Domestic Violence found that evidence of partner and/or child abuse did not prevent the abuser from winning sole or joint custody in most cases; income level—highly skewed in favor of fathers—apparently had the most impact on the custody order. Orders for protection had no impact on the final custody decision, with courts ignoring documented domestic violence evidence despite state law to the contrary. The study found that 100% of the victims were ordered to go to face-to-face mediation with the abuser. Researchers noted that a large number of judges thought that since the parties were separated, domestic violence was not a concern; and unsupervised visitation was frequently awarded. A majority of the women also reported condescension from state actors, denial of adequate opportunity to present their cases, and the use of abusive litigation tactics by the batterers.

The study found widespread violations of state law, constitutional due process and equal protection guarantees, and international human rights law. The authors made a number of recommendations, including: ongoing training for judges and court personnel to educate them about the dynamics of domestic violence and child abuse, including post-separation violence; requiring judges to write detailed findings of fact and conclusions of law in their custody orders; no mandatory face-to-face meetings between victims and abusers; supervised visitation when there is violence; elimination of existing time limits for contested custody hearings; sanctions for litigants who abuse the legal process; and reform of the complaint process against judges and custody evaluators.

Example: Australia’s Family Law Amendment (Shared Parental Responsibility Act) 2006 created a presumption of equal shared parental responsibility, including requiring courts to consider that the child spend equal time or “substantial and significant time” with each parent. Although the legislation included an exception for child abuse or family violence, several reports identified significant problems in the legal system’s response to domestic violence. In response to these reports, the government passed new amendments to the Family Law Act in 2011 giving priority to a child’s safety in determining the best interests of the child, and making it easier to bring allegations of family violence and sexual abuse before the court. Key changes to the law include broadening the definition of “family violence” to include socially and financially controlling behavior and exposing a child to family violence and the definition of “abuse;” to include serious neglect and causing a child serious psychological harm, such as subjecting or exposing the child to family violence. The amendments direct courts to give greater weight to a child’s safety as a primary consideration in determining the child’s best interest; and removing the “friendly parent” provision as a consideration in determining custody. See Australian Institute of Family Studies, “Evaluation of the 2006 Family Law Reforms,” (Dec. 2009); Chisholm, R., “Family Courts Violence Review” (27 Nov. 2009), and Family Law Council, “Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues,” (Dec. 2009).

Example: British Columbia, Canada’s Family Law Act, Bill 16 – 2011, provides an example of legislation that places the safety and best interests of the child first when couples separate or divorce. The act makes the best interests of the child the only consideration in deciding issues related to the child and uses the following criteria to determine the best interests:

History of care of the child,
Impact of family violence on the child’s safety, security or well-being,
Child’s preferences, as appropriate, and
Any civil or criminal proceedings relevant to the child’s safety and well-being.

The act also gives courts the tools to deal with family violence by defining the term; identifying risk factors to be considered in cases involving violence; and making safety the key goal of the best interests of the child test.

See also Violence Against Women in the United States and the State’s Obligation to Protect (2011), p. 62 – 63, para. 88 – 97; Davis, G., K. Lizdas, S. Tibbets Murphy, and J. Yauch, “The Dangers of Presumptive Joint Physical Custody,” Battered Women’s Justice Project, Minneapolis, MN, USA (2010).